AIR 2008 CALCUTTA 68 ::2008 (2) AJHAR (NOC) 563 (CAL) ::2008 AIHC NOC 471 ::(2008) 3 Cal HN 763

Calcutta High Court

Hon'ble Judge(s): Bhaskar Bhattacharya, Rudrendra Nath Banerjee , JJ

Specific Relief Act (47 of 1963) , S.38— Permanent injunction - Suit for - By a co-sharer against other co-sharers to restrain them from exercising their right over any part of property in joint possession without claiming partition thereof - IS not maintainable. A suit for permanent injunction was filed to restrain defendants from interfering with possession and occupation of part of property. Plaintiff claimed to be a co-sharer of l/35th share in a three-storied building. According to her, she was in exclusive possession of the entire first floor of the said premises consisting of three rooms as well as kitchen and covered veranda on ground floor. It is alleged that she is widow of one of the sons of the original owner of the property and all her daughters are married and taking advantage of her helpless situation, the defendant No. 1, her brother-in-law, was trying to create obstruction. Held that if a co-sharer is dissatisfied with the joint possession of the parties in the joint properties, his remedy lies by filing a suit for partition. So long the partition is not effected all the co-sharers have right in every part of the property and as such, one co-sharer cannot restrain the others from exercising their right over any part of the property without claiming partition thereof. The married sister-in-law of the plaintiff had right of residence in the su....